Thursday, 23 June 2016

FOI Act: Much desires, less effect

THE challenges and inadequacies facing the implementation of the Freedom of Information Act, FoI, five years after it was passed into law by the National Assembly, no doubt exposed the weakness of the law as well as the failure of majority of Nigerians to tap into its provisions to  make public records and information easily accessible.
FOI-bill-cartoonThe long title to the FoI Act states that : “it is an Act to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and established procedures for the achievement of those purposes and for related matters.”
This explained  why the Nigerian Institute of Advance Legal Studies, NIALS last week organised a three-day training/ workshop on the Freedom of Information Act,  where participants observed that five years into the implementation of the FoI Act in the country, there are still more grounds to be covered for effectiveness of the law.
The three days training programme organised by the Nigerian Institute of Advance Legal Studies, NIALS for Nigerians across all works of life, however brought to the fore the necessity to improve on the provisions of the law as well as making Nigerians, especially the FoI desk officers of government establishments as well as other Nigerians know what the law is out to achieve.
For a bill that spent 11 years in the National Assembly, and was passed into law five years ago, one would have expected that its coming into being would eventually pave way for public access to information in government circles which it seeks to promote. The reality is however the opposite. At the opening session, which held  at Ayo Ajomo Auditorium of the Institute, the NIALS  Director-General, Professor Adedeji Adekunle, underscored the importance of the training to the participants.
According to him, the bill which gave birth to the FoI Act suffered for over 11 years before it was finally passed by the National Assembly on May 24, 2011 owing to sustained public demand. He emphasised that the training will help the participants to understand on the workings, application and challenges of the Freedom of Information Act. He also disclosed that the institute put the programme together in order to make the law achieve the objectives for which it was enacted as applicable in some developed countries of the world.
Promotion of transparency
To kick start the training program was a presentation from a research fellow from the institute,   Maduka Ngozi who spoke on- “The FoI Act: Sectoral Responsibilities”, where she narrated the objectives of the Act.
She disclosed that specifically, the law was enacted to among others- “make public records and information easily accessible; protect public records and information; promote transparency and accountability in the public sector; protect public officials from consequences for disclosing certain public information (Official Secrete Act, Evidence Act).
Besides, she said the law will establish procedures for the discharge of responsibilities consistent with the interest of the general public; gives the general public the right of access to information and creates corresponding responsibilities for public institutions.
She emphasised that there were lots of factors responsible for lack of implementation of the Act which include inadequacies in information management, record creation, record keeping, organization and maintenance. She also noted that  lack of adequate knowledge of the responsibilities as provided by the Act, misinterpretation of the provisions of the Act, and lack or inadequate proactive measures for handling information requests bogged down the implementation of the law. She didn’t failed in mentioning the obligations attached to the law as applicable to sectoral and general responsibilities.
An international legal practitioner and expert in the workings of the Freedom of Information Act, Alimi Adams took the baton as he explained what is needful in responding to FoI requests by FoI officers as well as explaining what proactive disclosure meant in the implementation of the FoI Act. He argued that without much ado, a Freedom of Information desk officer is expected to do the needful by fashioning proactive steps in making “its non-exempt records publicly available without waiting for specific request from the public.”
He listed platforms such as information board, online platform, mobile alerts, community meetings, social audits, community based organisation, centralised disclosure platform, news media, flyers and bulletin as one of the numerous ways to make information available to the public.
On the second day of the programme, a Lagos lawyer and human rights crusader, Mr. Tokunbo Mumuni spoke extensively on “Balancing the public interest to disclose information or not”, while a senior advocate, Chief Anthony Idigbe, spoke on: “The FoI and Official Secrecy” as well as “Whistle blower Protection under the FoI Act.”
Mumuni in his presentations noted that the Act came into being, “in a manner of speaking more or less to circumvent the secrecy in government functions and businesses which was the hallmark of the Official Secret Act.” He discussed the scope and extent of the Act, what are the litigation issues under the Act and the appropriate method for commencing a FoI application before the court.
The lawyer noted that the Act provides that applicant denied access to information may apply to the court within 30 days for a review of the matter after he is refused the application by a public institution. Mumuni however explained one of the inadequacies of the Act when he said: “Apart from saying that the Applicant can approach the court, the provision does not say by what means, form or method the Applicant must approach the court.”
Discussing the issue of balancing the public interest to disclose information or not, he  listed some of the shortcomings to include but not limited to the relevance of the issues of the locus standi to the application brought under the Freedom of Information Act and whether the FoI Act can be applied retroactively.
He however, disclosed that in line with the principle of Section 12 (1) (a) (i)-(vi) (b), whatever the situation may be , “an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.”
In conclusion, the lawyer submitted that in the context of democratic governance, public interest must outweigh that of an individual public official whose identity of personality must be protected. He said : “Public interest can definitely not be the interest of the people who are in government and who hold the lever of authority and instrument of power and its paraphernalia.”
Dr. (Mrs) Ngozi Udombana who made presentation  on “Institutional and Reporting Requirements Under the Freedom of Information Act, 2011,” dwelt extensively on the institutional requirements on FoI Act, disclosure of information by public institutions, obligations as to time for granting or refusing applications, institutional framework and training obligation and general comments on institutional requirements.”
Beside, she articulated on reporting requirements of the public institutions, the Attorney General and the general comments.
Potential for success
She concluded that the FoI Act is a well thought out and deserved piece of legislation intended to assist the country in the realisation of an effective and accountable government. She submitted that effectiveness however, is not limited only to the amplification of legal doctrine but also its implementation, enforcement, impact and the compliance.
She added that, “there are substantive as well as syntactic gaps leading to ambiguity and practicality problem in the law which obviously affect its effective implementation.” Also she said that the law has potential for success but this can only be  realised if the identified gaps and grey areas are addressed, while its enforcement mechanism is strengthened.
Iriekpitan Okukpon-Adesanya spoke on “Data protection and Privacy”. In his presentation, he recommended that Nigeria must review the content of its data protection and privacy laws with a view to updating and where necessary, revising them so that when they are implemented, they will be effective and workable. He however cautioned that such review “must be done in consonance with the FoI Act in order that a data protection and privacy Act will be consolidated and recognised as  part of the freedom of information law and policy in Nigeria.”

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